February 2009

new source of law

http://www.spb.arbitr.ru/index?tid=633200032&fld_12 = % FD% F0% E3% EE & page = 1 & nd = 741955421 & text = 742105108

please rate the last three paragraphs in the reasoning of (highlighted in bold for clarity) :))))))

Arbitration Court of St. Petersburg and the Leningrad region
191015, St. Petersburg, Suvorov, etc., 50/52

name of the Russian Federation
DECISION

St. Petersburg
April 7, 2008 Year Case number A56-6546/2008

The operative part of the decision announced April 1, 2008.
Full text of the decision made 7 April 2008.

Arbitration Court of St. Petersburg and Leningrad region
comprising:
judge Nesmiyana SI,
in the conduct of the protocol trial secretary Nikitina, YS,

examined in court lawsuit:
plaintiff: CJSIC "ERGO Rus"
defendant: OOO Rosgosstrakh-Northwest "

to collect 35,883 rubles. 94 kopecks.

involving
- from the plaintiff: fails to appear
- from the defendant: jur. Savostina EA, attorney № 42 dated 01.01.2008

set:

CJSIC Ergo Russia "in the subrogation applied to the arbitration court against the company Rosgosstrakh North-West" to recover 35 883 rubles 94 kopecks insurance payment in compensation for damages caused by damage to the car accident 28/09/2006 BMV 316, state the number plate M806 HH 47, the insured in the insurance company "Rus" under the policy number 585998 from 20.06.2006 and the fault Kupriyanov EL, driving a car Skoda, state license plate X 054 VX 78, whose liability is insured in LLC Rosgosstrakh-North-West, policy OSAGO AAA number 0120524207.
LLC Rosgosstrakh-North-West "claim is not admitted, referring to the payment of compensation in the amount of repair costs, minus the cost of wear parts.
Plaintiff notified of the proceedings, attendance of the representative a meeting is not provided. In paragraph 27 of Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation № 65 of December 20, 2006 "On preparation of the case to court proceedings "explained that according to Section 4 of Article 137 of the APC, if a preliminary hearing persons involved in the case, do not mind against the continuation of the proceedings in the hearing of the arbitration court of first instance and is not subject to review collective composition arbitral tribunal shall determine the finalization of the case for trial and the opening of the hearing. If
persons involved in being informed properly about the time and place of the preliminary hearing and trial merits of the case, failed to appear in a preliminary hearing and did not have objections to the proceedings in their absence, the judge may conclude preliminary hearing and to begin proceedings in the trial of the arbitral tribunal of first instance.
from the materials the case that about 15 hours 30 minutes 09/28/2006 in Leningrad Oblast, Lomonosov district, village house warming, across the street from 150 Kupriyanov EL, driving Skoda, the state license plate X 054 VX 78, at the crossroads of equivalent roads did not provide an advantage in driving a car BMV 316 State license mark M 806 LV 47, under control of the driver Kachalova DS, and performed with him on collision. The vehicle
BMV 316 caused by mechanical damage. List damage is confirmed by certificate of participation in a traffic accident on 09/28/2006. Car BMV 316, the state license plate M 806 LV 47, insured by the insurance company "Russia" under the policy number 585998 from 20.06.2006.
Resolution OGIBDD ATS Lomonosov district № 107667 from 03.10.2006 on administrative violation Kupriyanov, EL convicted in violation of paragraph 13.11 of the Rules of the road of the Russian Federation and was appointed an administrative penalty in the form of an administrative fine of 200 rubles.
From the Kachalova DS violations of traffic rules of the Russian Federation just before the crash is not seen. According
Article 1079 Civil Code of the Russian Federation damage caused by the interaction of sources of increased danger to their owners will be compensated on general grounds. Article 1064 of the Civil Code provides that the person causing the harm, shall be exempt from compensation for the harm, if proves that the harm caused by no fault of his.
Car BMV 316 state license plate M 806 NN 47 insured in insurance company "Rus" the policy number 585998 from 20.06.2006.
TPL TC Skoda, state license plate X 054 VX 78, insured by the company Rosgosstrakh-Northwest " policy OSAGO AAA number 0120524207.
Because damage caused by the fault Kupriyanov EL, against his insured event occurred under the contract liability insurance.
assured № 585998 from 20.06.2006 Ilyuschits Marina S. damaged car BMV 316 presented to an independent appraiser LLC "NEO". According to a report on the assessment number 10421 / 6 dated 11.10.2006 and compiled by LLC "NEO", the cost of the restoration costs TC BMV 316 is based depreciation: 41,632 rubles 68 kopecks, excluding wear items: 99 952 rubles 14 kopecks.
insurer to pay policyholder Kachalov Denis Sergeyevich indemnity for the payment order number 3979 dated 07.11.2006 in the amount of 73,637 rubles 73 kopecks on the basis of its assessment of the cost of repairs.
Right victim to the insurance claim from the insurer for compulsory motor TPL insurance company turned to "ERGO Rus" by subrogation under section 965 of the Civil Code of the Russian Federation. CJSIC "ERGO Rus approached LLC Rosgosstrakh-North-West" with a claim from 26.06.2007 on payment of the amount of damages 73 637 rubles 73 kopecks. LLC "Rosgosstrakh-Northwest" insurance company had paid "ERGO Rus indemnity 37 753 rubles 79 kopecks, less the cost of depreciation of damaged parts, based on the calculation of insurance company "ERGO Rus. The difference between the amount paid to the victim - 73 637 rubles 73 kopecks, and obtained from "Rosgosstrakh-Northwest" insurance payments - 37 753 rubles 79 kopecks presented for collection before the arbitral tribunal.
Arbitration Court found plaintiff's demands to be satisfied partly in the sum of 3,878 rubles 89 kopecks, constituting the difference between the cost of repair, taking into account depreciation 41,632 rubles 68 kopecks, said in a report about Assessment LLC, NEO, and paid company Rosgosstrakh North-West "to the plaintiff - 37 753 rubles 79 kopecks for the following reasons.
under mandatory liability insurance of vehicle owners for the insurer agrees to the contracted fee (premium) for occurrence of events specified in the contract (insured) to compensate the victim suffered harm as a result of this event to life, health or property (make an insurance payment) within a certain amount of the contract (the sum insured).
In accordance with paragraph 3 Subparagraph b of paragraph 63 of the Rules of compulsory civil liability insurance of vehicle owners, approved by Resolution Government of the Russian Federation dated May 7, 2003 N 263 the insurance payment in case of damage to property of the victim is determined in case of damage property of the victim - in the amount of expenditure required to bring the property into a state in which it was before the insured event (Restoration costs). In determining the amount of restoration costs is taken into account wear and tear of parts, components, assemblies and parts used in reconstruction work.
decision of the Supreme Court of the Russian Federation dated November 25, 2003 № GKPI03-1266 paragraph 3 of subparagraph b of paragraph 63 of the Rules recognized as valid, as not inconsistent with federal law on April 25, 2002 № 40-FZ.
There is a different jurisprudence. In particular, in the decree of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 20.02.2007 № 13337/06 states that "... the Federal Law of 25.04.2002 № 40-FZ does not provide limit of insurance payments in connection with the state in which the property is located at the time of the injury. Contained in paragraph 63 of the Regulation the taking into account depreciation of property contrary to federal law 25.04.2002 № 40-FZ and the general rules of civil law for damages .... " This
Practice currently can not apply because federal law N 306-FZ of 1 December 2007 article 12 of the Law on Compulsory Insurance of Civil Owners of vehicles "from 01.03.2008 supplemented with clause 2.1, under which the amount of damages for infliction of damage to property of the victim is determined by:
a) in the event of total loss of property of the victim - in the amount of the actual value of the property on the date of accident. At a total loss covered cases, if the repair of the damaged property is not possible or the cost of repairing damaged property is equal to its value, or exceeds its value at the date of the insured event;
b) in case of damage to property of the victim - in the amount of expenses necessary to bring the property into a state in which it was before the date of loss occurrence.
to those specified in paragraph 2.1 of this Article expenses include the costs for materials and spare parts required for refurbishment, the cost to pay for work associated with such repairs.
the condition in which the vehicle was up to the date of the insured event, suggests including cost accounting depreciation and the available damages of its parts.
Special attention should be paid to the fact that the insurance payments that insurers make, is not enforceable in civil law violation. Insurer complies insurance obligations, and shall not be responsibility for its violation. In the insurance relationships refundable damage to property serves as a subject of the contract - the insured event, the onset of which entails the provision of a counter-offensive term in the form of indemnity.
In accordance with paragraph 4 of Article 931 of the Civil Code of the Russian Federation in the case of liability for damage is insured by virtue of the fact that her insurance is compulsory, as well as in other cases stipulated by law or contract of insurance of such liability, the person to whom an insurance contract is concluded, directly against the insurer is entitled to submit the claim for damages within the sum insured.
According to paragraph 1 of Article 13 of the Federal Law "On mandatory insurance of civil liability of vehicle owners," the victim may bring directly to the insurer the claim for damages within the sum insured. Insurer within 15 days is required to make insurance payments to victims.
legal relations on a claim of harm met by insurance payments, no conflict between obligations of the injury and the insurance because the insurer and the victim (or beneficiary) is not connected by a single undertaking. Compensation harm can be done using different methods of civil protection. The insurance claim the beneficiary is special case of compensation for harm with the use of property insurance. Mutual legal status of the victim and the insurer is determined the law on the status of third parties, of which one has the right to demand performance in their favor (Art. 430 CC), and the second execution is assigned (Art. 313 CC).
Federal Law "On mandatory insurance of civil liability of vehicle owners," Rules of compulsory insurance, the approved Government of the Russian Federation dated May 7, 2003 N 263 and the Rules of the organization and conduct an independent technical review approved Government Decree of 24.04.2003 № 238 installed standard procedure for determining the amount of the insurance payments on obligatory insurance. Application Rules of the Civil Code of the Russian Federation for damages (damages, loss of income) to determine the size of the insurance payoff means the substitution of private law notions of fairness.
At the meeting devoted to the 85 anniversary of the Supreme Court of Russia, who was elected President of the Russian Federation, DA Medvedev said that "... the legal nihilism is a powerful brake on the development of our state. Disrespect for the law does not appear by itself ... Legal culture depends on the quality of law enforcement and the quality of public agencies and officials. "
Therefore tribunal in choosing the principles of this case is guided by the declared President-elect of legal doctrine.
Pursuant to Articles 156, 170, 176 Arbitration Procedure Code of the Russian Federation, The Arbitration Court of the City of St. Petersburg and Leningrad region

decided:

recover from Limited Liability Rosgosstrakh North-West "3878 rubles 89 kopecks - indemnity and 155 rubles and 15 cents - the cost of public duty.
In the rest of the claim denied.

The decision may be appealed to the Thirteenth Arbitration Appeal court within one month from the date of the decision or appeal to the Federal Arbitration Court of the Northwest District within a period not exceeding two months from the date of entry into force.

Judge Nesmiyan SI

Because The World Is Not As Cruel As You Think It Is.

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